In this article, Utkarsh Sharma of RGNUL discusses what is judicial overreach with 5 leading cases on the issue.

5 Examples of Judicial Overreach in India

The role of Judiciary has always been under attack, majorly from the legislative branch, which feels that the courts are crossing their power and have become an extra-constitutional lawmaking body. They argue that the job of the judiciary is to interpret laws and not to make them and the judiciary in many stances have overlooked the legislative authority.

Judicial Activism Vs. Judicial Overreach

Many times these two terms are used by the people as synonyms, but we need to understand that these two words signify different meanings. There is a very thin line between judicial activism and judicial overreach, as when the activism crosses its limit and starts becoming judicial adventurism it takes the form of Judicial overreach. Whether the action is activism or overreach is based on the perception of the individuals. But the judiciary has always argued that due to legislative and executive underreach they have to step in and pass the directions.

Examples of Judicial Overreach

• Imposition of Patriotism in National Anthem Case.

The Supreme Court on December 2016, passed its judgment in the case of Shyam Narayan Chouksey v. Union of India, which makes it mandatory, that:

1. All the cinema halls in India shall play the National Anthem before the feature film starts.
2. All present in the hall are obliged to stand up to show respect to the National Anthem.
3. The entry and exit doors shall remain closed prior to the National Anthem is played or sung in the cinema hall so that no one can create any kind of disturbance.
4. The doors can be opened after the National Anthem is played or sung.
5. The National Flag should be displayed on the screen while the National Anthem is played in the hall.

A case of Judicial Overreach

1. Neglected the Bijoe Emmanuel Case – The court in the order have not referred to the landmark judgment in Bijoe Emmanuel case. In this case. In this case, three children were expelled from the school in Kerala for not singing the National anthem because their religion did not permit them to join any rituals except in their prayers to Jehovah. The court had ruled that there is no legal provision that obliges anyone to sing the anthem and ordered the school to take back three children it had expelled. The court has ignored the situations where the people may not be able to stand up for physical reasons, intellectual or religious reasons because they may consciously believe that their religious beliefs, prevent them from standing up.
2. Ignored the Uphaar Tragedy Case – In ruling that entry and exit doors be closed while playing the National Anthem, the Supreme Court ignores its own earlier judgment in the Uphaar tragedy case where the court had held that under no circumstances should the doors in a cinema be shut from the outside.
3. Implementation Issues – This order will face implementation issues as who will count how many people are standing and how many are sitting while the anthem is playing? Who will see if one can’t stand up due to physical problems or some other reasons? And then, what if there is an emergency? What if somebody urgently needs to go to the washroom?
4. Goes beyond the Prevention of Insults to National Honour Act, 1971 – The direction goes beyond the Prevention of Insults to National Honour Act, 1971, which says that no film, drama or show of any sort can have the National Anthem as part of the show.

• Proactive Censorship in case of Jolly LLB 2

In this case after the certification of the movie Jolly LLB 2 by the Central Board for Film Certification (CBFC), a petition was filed claiming that the film was in violation of Section 5B of the Cinematograph Act, 1952, which deals with the prevention of the certification of films that involve defamation or contempt of court. The Bombay High Court admitted the petition and appointed a committee to report. The Court also gives Committee the power to suggest the changes. After the recommendations by the committee, the Court ordered to cut four scenes from the movie and also directed the CBFC to re-certify the film. The reasoning given by the Court was that this was defamatory to the lawyer’s profession.

A case of Judicial Overreach

1. Unnecessary Interference – The Cinematograph Act, 1952 which deals with the provisions relating to the certification of films and makes it very clear that only the Board of Film Certification has the power to censor movies and suggests the cuts with an appeal lying to an Appellate Tribunal and under the Act, the Government also has revisional powers. Under the Cinematograph Act, the Courts have no power to certify, modify, or refuse certification of films.
2. Violation of Article 19(2) – The order of the court is seen as a restriction on freedom of speech and expression as provided under Article 19(2) of the Constitution. And as it also states that only a law can impose reasonable restrictions. It is pertinent to note that an order of a court does not come under the law for the purposes of Part III of the Constitution which defines fundamental rights. Thus, it can be said that the Bombay High Court’s order mandating excisions in Jolly LLB2 was passed without any authority.
3. The committee was Illegal – The Bombay High Court’s decision to set up a committee was not legal and without jurisdiction. The finding of contempt on the basis of trailer goes against a range of Supreme Court judgments that make it clear that films have to be seen as a whole. In fact, this was the exact reason that the Delhi High Court dismissed the PIL against Jolly LLB 1. The Committee acts as an entirely fresh censor board, and thus reduces the statutory Board itself to a nullity.
4. Contradicting order against the Delhi High Court Judgement – In 2013 also Jolly LLB 1, ran into legal trouble. A PIL was initiated in the Delhi High Court, asking the Court to direct the Film Certification Board to cancel the license. The Court, in this case, dismissed the PIL, as they find nothing of “public interest” in it, and also said that it would be premature as it had been filed purely on the basis of trailers. A further appeal to the Supreme Court was also dismissed with Justice Lodha memorably remarking, “if you don’t like it, don’t watch it.”

• Liquor Ban

In the Supreme Court, ruling on a PIL which was about road safety, has banned the sale of liquor at retail outlets, as also in hotels, restaurants, and bars, that are within 500m of any national or state highway.

A case of Judicial Overreach

1. Unnecessary Interference – The directive principles of state policy are policy issues which should be left to the government to decide. It is not the court’s job to force the government to implement them. These orders are felt to be against the spirit of separation of powers given by our constitution. It was an administrative matter where the decision rests with state governments. The court was not the appropriate authority for such decisions.
2. Not a fit case to use Article 142 – This was certainly not a fit case to invoke the extraordinary powers of the court using Article 142, which talks about “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…” In the absence of any similar notification by any of the State governments, the court extended the ban to State highways as well. It will give rise to many problems such as how to measure 500m, how to reduce the impact and what about places like Goa, these all matters requires executive knowledge and requires the accountability of the governments.
3. Lacked Evidence – No empirical evidence was present before the court that by banning liquor sale on highways will reduce the deaths. It may be noted as found by the court from the statics of 2015, that the total percentage of accidental deaths caused due to drunken driving, was only 4.2% as against the 44.2% caused by over-speeding. So, there was no empirical reasoning behind the order.
4. Loss of Revenue – The order has caused much collateral damage for the governments. For state governments, there is a massive loss in the form of revenue collection. According to various estimates by the experts, suggests that state governments could lose as much as Rs 50,000 crore per annum.The problem becomes more noticeable by the fact that at least one-half, possibly two-thirds, of retail outlets, bars, restaurants, and hotels are located within a range of 500m of national or state highways. Due to this, some states have started even denotifying state highways as municipal roads.
5. Loss of Employment – Employment and livelihoods are expected to be badly affected by the order. The loss in business for hotels, restaurants, and bars will directly affect the jobs and indirectly will reduce the jobs in enterprises that form part of their supply chains. The court had itself held the right to employment as a basic right under Article 21. However, with the order of banning the sale of alcohol along highways will make a loss of employment to lakhs of people.

• The cancellation of telecom licenses in 2G case

After the CBI registered FIR against the officials of the Department of Telecom in 2G scam case, the Supreme Court ordered to cancel 122 telecom licenses and spectrum allocated to eight companies. The Supreme Court held that the process of allocation was flawed. It further directed the government to allocate national resources through auction only.

A case of Judicial Overreach

1. Rise in Non-Performing Assets – Rising non-performing assets (NPAs) are, to some extent, the result of the judicial decision of canceling the licenses. Courts failed to consider their impact on the economy. Due to this the telecom sector is, till today, reeling under the after-effects of the judgment. The balance-sheets of public sector banks are also adversely impacted as the defaults on bank loans have increased.
2. Neglected the Role of Legislative and Executive bodies – The economic decisions of a country are the sole domain of the legislative and executive bodies and the court, in this case, overreached their power, which impacted the economy heavily. Banks are not willing to lend to operators already heavily indebted and return on investment was inadequate to repay the debts.
3. Overlooked the consequences – The sector is in a debt of around Rs 5 lakh crore. Telenor, Etisalat, and Sistema have exited. Vodafone and Idea are intended to merge. Reliance is in deep trouble and has no choice except to exit.

• Lodha Committee report on the Board of Control for Cricket in India

The Lodha Panel was set up by the Supreme Court, following the allegations of corruption, match-fixing and betting scandals in Indian cricket. The committee was set up in an attempt to bring back law and order into the BCCI and the game of cricket. The recommendations made were aimed at making the reforms and changing the year-old elite formation of BCCI that ruled the Indian cricket at central and state levels.

The key recommendations of the committee are:

1. BCCI should come under RTI.
2. Cricket betting should be made legal.
3. More than two consecutive terms for holding office positions should be barred.
4. Ministers or government servants should not hold official positions in BCCI.
5. There shall be only one post per one person.
6. Only the cricket bodies that represent states should have full membership and voting rights in BCCI.
7. Other members of the board like All India Universities, Railway Sports Promotion Board etc. should be given the status of associate members without voting rights.

A case of Judicial overreach

1. Lodha committee had no authority – The BCCI is registered and governed by the Tamil Nadu Societies Act. And it also does not take money from the government and was an was not controlled by the central or any of the state government. The BCCI president, secretary, and other office-bearers are elected on the basis of its bye-laws. So, the Lodha committee has no authority to make the recommendations. The court could have instructed that the BCCI run in accordance with the provisions of the Societies Act.
2. Not the Courts job to run Sports bodies – It is not for the court to run a sports body or to prescribe how it should be run. The autonomy of the institutions should be respected. It is in the best interest of sports that bodies that look activities in these fields are given autonomy. External interference and violation of their autonomy are not good for the developments in these areas. If they have violated the rules or otherwise shown themselves to be unfit for their positions, they should be removed through the proper prescribed procedure.
3. Flawed Recommendations – With the one state one vote rule, the court has ignored the cricket history in India going back over a century has teams participating in the Ranji Trophy from Railways and Services. They have now been given a status of associate members with no voting rights. Sticking to its strict provision of geographical territory criteria, teams like Bombay, Baroda, Saurashtra, and others will now be wiped out.

Implications of Judicial Overreach

1. It destroys the spirit of the constitution as the democracy stands on the separation of powers between the organs.
2. It creates a conflict between the legislative and the judicial system. As the message which is conveyed with these decisions among the people is of legislative inactivity.
3. When Judicial activism helps in strengthening the people’s faith in the judiciary, the very act of overreach destroys it. As it appears an act of ‘tyranny of unelected’ in a democracy where elected representatives rule.
4. It reduces the trust of the people in public institutions which can be dangerous for democracy.
5. It is a waste of Judicial time, which can otherwise be utilized for hearing various important matters relating to public importance pending before the court.

References:

• http://www.thehindu.com/opinion/op-ed/article-142-and-the-need-for-judicial-restraint/article18474919.ece.
• https://www.indiatoday.in/india/story/2g-spectrum-verdict-what-happens-now-to-122-cancelled-telecom-licenses-1113292-2017-12-21.
• http://www.firstpost.com/firstcricket/sports-news/bcci-vs-lodha-committee-all-you-need-to-know-about-conflict-leading-to-scs-historic-decision-3036764.html.
• Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129.